(39 Ind. App. 86)

INDIANA UNION TRACTION CO. v. Mc

KINNEY. (No. 5,680.)*

another and a physician was called to treat her, the husband had a right to recover the expense incurred in addition to any damage that might

June 5, 1906.)

1. CARRIERS-INJURY TO PASSENGERS-NEGLIGENCE COMPLAINT-SUFFICIENCY.

A complaint, alleging that a street railway car negligently approached a switch at a dangerous rate of speed and negligently ran into the switch at such dangerous rate of speed, and that by reason thereof the car left the track, thereby negligently throwing a passenger from her seat and injuring her, sufficiently charges negligence as against a demurrer.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 1273, 12752.] 2. SAME.

A complaint alleging that a street railway car negligently approached a switch at a dangerous rate of speed and negligently ran into the switch, and that by reason thereof the car left the track, thereby negligently throwing a passenger from her seat and injuring her, sufficiently charges the negligent derailment of the

car.

[Ed. Note. For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 1273, 12752.]

3. SAME-RELATION OF PASSENGER AND CABRIER-COMPLAINT-SUFFICIENCY.

A complaint alleging that plaintiff took passage on a street car at a designated point to be carried to another designated point shows the relation of carrier and passenger.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, § 1275.]

4. APPEAL HARMLESS ERROR ERRORS IN RULING ON DEMURRERS.

Where, in a personal injury action, the answer tendered the issue of payment and settlement and a paragraph of the reply was a general denial, the overruling of a demurrer to another paragraph of the reply, alleging that there was no consideration for the settlement, was not prejudicial to the company, since the evidence pertinent to the issue was admissible under the answer and the denial in the reply. [Ed. Note.--For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 4103.] 5. RELEASE-PLEADING-SUFFICIENCY.

The exhibit filed with an answer in a personal injury action was a copy of a check and a voucher showing that it was on account of damages and reciting: "The indorsement of this voucher by the payee constitutes a release in full." The reply averred that the plaintiff did not enter into any contract or indorse the check or voucher, or authorize any one to do so for her. Held, that the agreement relied on by defendant could not become effective until the check and voucher were indorsed by the plaintiff or some one authorized by her, and the reply sufficiently pleaded that that was not done as against a demurrer.

6. CARRIERS-INJURIES TO PASSENGERS-NEGLIGENCE-PRIMA FACIE PROOF.

Proof of a derailment of a street car and a

resulting injury to a passenger thereon raises a presumption of the of the carrier's negligence amounting to prima facie proof, making it incumbent on the carrier to produce evidence to rebut the presumption, and that the accident could not have been prevented by the exercise of the highest practical care.

[Ed. Note.--For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 1283, 1288.]

7. HUSBAND AND WIFE-RIGHTS AND LIABILITIES OF HUSBAND

A husband is legally bound to pay a bill for medical treatment incurred in the treatment of his wife unless she agree to pay it herself, and where a wife was injured by the negligence of *Rehearing denied November 14, 1906.

any amount received in settlement of the claim of the wife and her husband for that purpose was, in the absence of a special agreement to the contrary the property of the husband.

Appeal from Circuit Court, County; Edw. W. Felt, Judge.

Hancock

Action by Flora McKinney against the Indiana Union Traction Company. From a judgment for plaintiff, defendant appeals. Affirmed.

J. A. Van Osdol, Marsh & Cook, and L. B. Ewbank, for appellant. Mason & Jackson, W. J. Beckett, and Morton S. Hawkins, for appellee.

WILEY, J. Action by appellee to re cover damages for personal injuries sustained by her in a wreck of an electric car on which she was riding over appellant's road. The complaint was in two paragraphs, a demurrer to each of which was overruled. Appellant answered in four paragraphs, the first of which was a denial; the second a plea of settlement and payment in full; and the third a plea of release of damages in consideration of money paid by check. The fourth paragraph of answer is omitted from appellant's brief, and is not discussed in argument. Appellee replied in three paragraphs, the first of which was a denial, the second averred that there was no consideration for the alleged release and settlement of damages, and the third was a plea of non est factum as to the release. A demurrer to the second and third paragraphs of reply was overruled. Trial by jury. Verdict and judgment for appellee in the sum of $2,500. Appellant's motion for a new trial was overruled. Overruling the demurrer to each paragraph of the complaint, to the second and third paragraphs of the reply, and overruling the motion for a new trial are assigned as

errors.

Omitting the formal parts of the first paragraph of complaint it is therein averred that appellee, on the 4th day of July, 1903, took passage at Indianapolis on one of defendant's cars; that she paid her fare and became a passenger at Indianapolis, and desired to be conveyed to the city of Anderson, Ind., and to points east thereof; that she was sitting in her seat in one of defendant's cars, in the exercise of due care, and that the defendant negligently and carelessly approached a switch with the said car in which she was a passenger, at the town of McCordsville, at a high and dangerous rate of speed, and negligently ran into said switch at said high and dangerous rate of speed, and that, by reason thereof, said car left the track and "thereby negligently destroyed said car, and negligently threw this plaintiff from her seat in said car, and against the sides and windows of said car," to her injury, etc. In the

second paragraph of complaint it is charged that appellant maintained a switch and a switch track at McCordsville; that the switch had become and was defective in that the tongue and rail thereof had become warped and crooked; that the switch tongue and rail did not fit perfectly; that appellant had negligently permitted said switch and switch rails and attachments to get out of repair and become defective as aforesaid; that appellant's car, in passing upon the switch, by reason of the defects thereof, would run off of the track and become derailed. This paragraph contains the following averment: "And plaintiff says that she took passage upon the defendant's car on said date, at Indianapolis, Ind., and desired to be transported over the defendant's line from said city of Indianapolis to said city of Anderson, and to points east thereof, and that the defendant on said date did, with said car upon which this plaintiff was a passenger as aforesaid, negligently approach said defective switch at a high and dangerous rate of speed, and did negligently fail to properly investigate and discover the condition of said switch before running into and upon the same." It is further averred that by reason of appellant's negligent failure to approach the switch with the car under control, and by reason of its failure to investigate and know the condition of said switch, and by reason of its negligence in failing to properly construct the same and keep it in repair, appellant's car, upon which appellee was a passenger, was, by appellant's negligence as aforesaid, derailed at said switch, whereby she was injured, etc.

It is contended by counsel for appellant that the first paragraph of complaint does not charge that appellant was guilty of any négligent act-that merely running the car at a high and dangerous rate of speed is not negligence per se. The language of this paragraph of complaint is that "defendant negligently and carelessly approached a switch with the said car in which this plaintiff was a passenger, at a high and dangerous rate of speed, and negligently ran into said switch at said high and dangerous rate of speed, and that by reason thereof said car left said track and thereby * * negligently threw her from her seat," etc. As a matter of pleading this is a sufficient charge of negligence. In the recent case of Indianapolis, etc., R. Co. v. Schmidt, 163 Ind. 360, 71 N. E. 201, this identical question was involved, the court said: "The appellant negligently ran its car at a high and dangerous rate of speed into a switch maintained by it on its own line, in consequence of which negligent conduct, the car ran off of the track against a pole in the street. ** Nothing else can be understood from the averments of the complaint, than that the negligent conduct of the appellant, in running its car caused the car to leave the track.

*

***

In

view of the very strict responsibility of car

riers for injuries to passengers, no great particularity is necessary in the description of the negligence by which the injury was occasioned." The authorities in this state seem to be uniform that as a rule of pleading it is sufficient as against a demurrer for want of facts to characterize an act as having been negligently and carelessly done, and that, under such an allegation, the specific facts constituting the negligence may be given in evidence. Louisville, etc., Ry. Co. v. Jones, 108 Ind. 551, 9 N. E. 476; Cleveland, etc., Ry. Co. v. Berry, 152 Ind. 607, 53 N. E. 415, 46 L. R. A. 33; Chicago, etc., Ry. Co. v. Grimm, 25 Ind. App. 494, 57 N. E. 640; Citizens', etc., Ry. Co. v. Lowe, 12 Ind. App. 47, 39 N. E. 165. It is also urged that the paragraph is bad because it does not allege negligent derailment of the car. It is averred that by reason of the negligence charged, the car left the track, etc. This is sufficient. The demurrer to the first paragraph of complaint was properly overruled.

A general objection is urged to the complaint because it fails to show by proper averment that the relation of carrier and passenger existed. This objection is not well grounded. It affirmatively appears that appellee took pasage upon one of appellant's cars at Indianapolis, to be carried to Ander

This shows that the relation of carrier and passenger existed. Ohio, etc., Ry. Co. v. Craucher, 132 Ind. 275, 31 N. E. 941.

The second paragraph of answer alleges that, after appellee's cause of action accrued, appellant settled the same by paying to her the sum of $50, which amount she accepted "in full settlement, discharge, and satisfaction thereof." The third paragraph of answer alleges that after appellee's cause of action accrued, and before this action was commenced, it was mutually agreed between appellant and appellee that the former would deliver to the latter, and that she would receive in full settlement and satisfaction of the claim sued on, the check of appellant in favor of appellee and her husband, in the sum of $50; that in pursuance to said agreement appellant delivered to appellee said check; that she received the same in full settlement, discharge, and release of the claim sued on. A copy of the check, with indorsement, showing payment, etc., is filed as an exhibit to the answer. The second paragraph of reply is as follows: "And for a second paragraph of reply to defendant's second, third, and fourth paragraphs of answer, plaintiff says that there was no consideration of any nature whatsoever for the alleged release and settlement, as set out in defendant's said second, third, and fourth paragraphs of answer." It is urged in argument that the second paragraph of reply is insufficient to avoid the second paragraph of answer, because the answer is a simple plea of payment in full, and acceptance on the part of appellee, while the reply is merely a plea of no consideration, and that it does not even

remotely touch upon the facts in the answer. If the second paragraph of reply was bad, overruling the demurrer to it was not reversible error. The second paragraph of answer tendered the issuance of payment and settlement. The first paragraph of reply was a denial. Upon the issue of payment and settlement the burden was upon appellant. All the evidence pertinent to that issue was admissible under the answer and the denial in reply.

The third paragraph of reply is as follows: "And for a third paragraph of reply to defendant's third and fourth paragraphs of answer, plaintiff says that she did not execute the release set out in defendant's said fourth paragraph of answer, nor did she authorize any one for or on her behalf to so execute said release; she further says that she did not execute nor indorse the check or voucher set out in defendant's said third and fourth paragraphs of answer, nor did she authorize any one for or on her behalf to so execute or indorse said voucher; she further states that she did not, at any time, enter into any contract of any nature whatsoever with said defendant in reference to the settlement of her said claim for damages as set forth in her complaint, nor did she authorize any one for or on her behalf to so enter into any contract of release or settlement of her said claim as set forth in her said complaint." This paragraph of reply was verified. The exhibit filed with the third paragraph of answer is a copy of the check, a voucher showing that it was on account of damages, etc., and the following: "The indorsement of this voucher by the payee constitutes a release in full of the within account." The reply avers that appellee did not enter into any such contract, or indorse the check or voucher, nor authorize any one to execute or indorse it for her. This paragraph of reply pleads non est factum as to all material facts pleaded in the third paragraph of answer. Under the very terms of the check and voucher, which is made an exhibit to the answer, and thereby becomes a part of it, the agreement relied upon by appellant could not have become effective until the check and voucher were indorsed by appellee or some one authorized by her, and this she avers, under oath, was not done. The receipt by appellee of the voucher and check, was only one of the steps in their execution, and the denial under oath, of the execution of these instruments is a sufficient denial that she received them in settlement of her claim. The demurrer was correctly overruled.

Under the motion for a new trial the only questions discussed are those presented by certain instructions given. Instructions 4 and 5, given by the court upon its own motion, are criticised because in stating the issues tendered by each paragraph of the complaint, the court told the jury that it was averred that appellee was a passenger upon

one of appellant's cars, and that she desired to be transported from Indianapolis, Ind., to Anderson, etc. It is urged that the averments of the complaint do not show that the relation of carrier and passenger existed. In determining the sufficiency of the complaint we passed upon this question. In Ohio, etc., Ry. Co. v. Craucher, supra, it was said: "The allegation that he took passage to be carried from one station to another, is a fact that made him a passenger.

If any facts existed which exonerate the company from treating such person as a passenger, or which forfeits his right to be carried upon such train, it must be pleaded as a defense. We think the facts pleaded in each paragraph of the complaint are sufficiently specific, and the motion was properly overruled." These instructions are not subject to the objections urged.

The first instruction given by the court on appellee's motion was in substance that proof of the derailment of the car and resulting injury raises a presumption of the carrier's negligence amounting to prima facie proof, and adding: "And it is incumbent upon the carrier to produce evidence which will excuse the prima facie failure of duty on its part; or, in other words, the carrier has the burden of proving, in order to rebut the presumption of negligence under the circumstances herein stated, that the accident could not have been prevented by the exercise of the highest practical care and diligence."

The second instruction given on appellee's motion is substantially the same as the first. An instruction, in almost the identical language of these, was approved in Indianapolis, etc., Ry. Co. v. Schmidt, supra, and in Terre Haute, etc., Ry. Co. v. Sheeks, 155 Ind. 74, 56 N. E. 434.

The fifth instruction is as follows: "The husband is legally bound to pay the doctor bills and bills for medicine necessarily incurred in the treatment of his wife, unless she agreed to pay them herself; and if the plaintiff was injured by the negligence of defendant, * * * * and a physician was called to treat her in consequence thereof, and medicine and drugs purchased to be used to heal and restore her to health, the husband would have a right of action to recover such expense, in addition to any damage that might result from the loss of services of his said wife, and any amount of money received in settlement of the claim of the plaintiff and her husband for that purpose, in the absence of a special agreement to the contrary, would belong to the husband. As an abstract proposition this instruction is a correct statement of the law. At common law a husband was bound to support and maintain his wife, providing her with necessary lodging, clothing, substance, etc., and in case of sickness or injury, to furnish her with medicines and medical attendance, and there is no statutory provision, to our knowledge, which relieves him from these obligations. Rariden,

v. Mason, 30 Ind. App. 425, 65 N. E. 554 It will be observed that the instruction is directed to the fact that if the money was received for the purposes indicated, it would belong to the husband. There was no error in giving it.

This disposes of all the questions discussed. Judgment affirmed.

(38 Ind. App. 570).

FULLER v. EXCHANGE BANK et al. (No. 5,695.)*

(Appellate Court of Indiana, Division No. 2. June 6, 1906.)

1. PLEADING-ADMISSIONS.

In an action to vacate an execution sale, an allegation in the complaint that after the property was sold the execution creditor by its attorneys receipted to the sheriff on the execution for $582.92, and that the execution was afterwards returned satisfied, constituted an admission that the attorney had authority to execute such receipt.

2. EXECUTION-ACTION TO SET ASIDE SALEINADEQUACY OF PRICE.

In an action to set aside an execution sale of property, plaintiff cannot object that the amount for which the property was sold was inadequate or less than its actual value, in the absence of an averment of such fact in the complaint.

[Ed. Note.-For cases in point, see vol. 21, Cent. Dig. Execution, § 730.]

3. SAME-SALE-AUTHORITY.

A sheriff, in making an execution sale, is a special agent, and can only pass title to property sold in accordance with the express provisions of the law.

[Ed. Note. For cases in point, see vol. 21, Cent. Dig. Execution, § 601.]

4. SAME-PAYMENT OF PRICE.

Where property was sold under an execution to a purchaser other than the judgment creditor, no title passed until the purchase price was paid to the sheriff, and the execution of a receipt to the sheriff by the execution creditor under an arrangement with the purchaser was insufficient.

Appeal from Circuit Court, Owen County; Joseph W. Williams, Judge.

Action by E. Chubb Fuller against the Exchange Bank and others. From a judgment for defendants, plaintiff appeals. Reversed.

A. W. Wishard, A. W. Hatch, Thos. G. Spangler, and Chas. Downey, for appellant. I. H. Fowler and J. C. Robinson, for appellees.

ROBY, J. Appellant's demurrer to appellees' complaint for want of facts, was sustained, and refusing to plead further, judgment was rendered against him, from which he appeals.

It is averred in the complaint, which is in one paragraph, that on June 23, 1904, the appellee bank recovered judgment in the Owen circuit court against appellant for $575.92, and costs; that an execution was duly issued thereon and delivered to the sheriff, who on August 25th, levied said execution "on 349 shares of stock at $100 per share of the capital stock of the Epitomist Publishing Com*Rehearing denied October 4, 1906.

pany as the property of the plaintiff herein." That the same was duly advertised for sale. by said sheriff, who sold the same at public auction to appellees Smith and Nordyke for the sum of $605.87, said amount being the highest and best bid offered; that after said property was sold the appellee bank, by its attorneys, receipted the said sheriff on said execution for $582.92, and said execution was afterward returned as satisfied. "Plaintiff avers that the amount of said bid

was not paid to the sheriff aforesaid by said defendants Smith and Nordyke at the time the said sheriff made said sale, or at any time thereafter, nor was the amount of said bid paid by said sheriff to said Exchange Bank or its attorney * at the time

the receipt aforesaid upon said writ was executed, nor at any other time. Wherefore plaintiff prays that said sale of said stock be vacated and set aside, for judgment for costs, and all other proper relief." The averment is that the receipt referred to was executed by the bank. The authority of the attorney to execute such receipt is thereby affirmed. There is no averment that the amount paid was inadequate or less than the actual value of the stock described. If the appellee desired to present a question as to the inadequacy of the consideration, he should have done so by appropriate averment, the presumption being that property sold at a regular sale "fetches its true value." De Hority v. Paxon, 115 Ind. 124, 17 N. E. 259.

The further question for decision is whether the failure to pay the amount of said bid invalidates the sale. The sheriff is a special agent; he cannot exceed the power which the law gives him. That he cannot sell and convey title to the property of another, except in accordance with such law, "is one of those self-evident propositions to which the mind assents without hesitation, and that the person invested with such a power must pursue with precision the course prescribed by law or his act is invalid, is a principle which has been repeatedly recognized in this court." Thatcher v. Powell, 6 Wheat. 119, 5 L. Ed. 221. It follows that a conveyance made by him without receiving the purchase price is invalid. Chapman v. Harwood, 8 Blackf. 82, 44 Am. Dec. 736; Doe v. Collins, 1 Ind. 24; Swope v. Ardery, 5 Ind. 213; McCormick v. Wood, 72 Ind. 18; Liggett v. Firestone, 96 Ind. 265; Ruckle v. Barbour, 48 Ind. 274; Freeman, Executions (3d Ed.) § 301; Rorer. Judicial Sales (2d Ed.) § 729; Kleber's Void Judicial and Execution Sales, § 18. No title to the property sold passes until the purchase price is paid. Dawson v. Jackson, 62 Ind. 172; Conklin v. Smith, 7 Ind. 107, 63 Am. Dec. 416. It is the payment of the purchase money which completes the sale. Carnahan v. Yerkes, 87 Ind. 66; Liggett v. Firestone, supra. Where the execution creditor purchases, it is held that his receipt is sufficient without the actual payment of the purchase price by him to the sheriff, for the reason

that to require him to pay over the money to the sheriff, immediately thereafter receiving it back from the sheriff, would be an idle form. Louden v. Ball et al., 93 Ind. 232, 234; Boos v. Morgan, 130 Ind. 305, 311, 30 N. E. 141, 30 Am. St. Rep. 237; Burton v. Ferguson, 69 Ind. 486; Robertson v. Van Cleave, 129 Ind. 217, 26 N. E. 899, 29 N. E. 781, 15 L. R. A. 68; Dean v. Phillips, 17 Ind. 406. The reason for this exception from the universal rule requiring a cash payment of the amount bid, does not apply when the purchaser is not the execution creditor. The cash payment satisfies the writ and judgment, the subsequent application of the proceeds of such sale being a matter to which the debtor is not required to give any attention. State ex rel. v. Salyers, 19 Ind. 432; Beard v. Millikan, 68 Ind. 231.

It is insisted by appellant that the attorney who executed the receipt averred to have been given by the appellee bank had no authority to act for the bank in that behalf. While the complaint does not present the point argued, it is suggestive of controversies likely to follow a holding that arrangements between the execution creditor and the purchaser to which the execution debtor is not a party may take the place of the cash payment by which the sale is consummated and without which no title passes. The failure to pay the amount bid is not a mere irregularity, but is of the essence of the transaction, and the requirement that the amount of such bid be paid in cash is therefore a material and essential one.

The judgment is therefore reversed, and cause remanded, with instructions to overrule the demurrer to appellees' complaint and for further consistent proceedings.

Burns' Ann. St. 1901, § 5323, requiring railroads to construct and maintain fences along their right of way sufficient and suitable to turn and prevent cattle, etc., from going on the track, is a valid exercise of the state's police power to provide against accidents to life or property in any business or employment. [Ed. Note.-For cases in point, see vol. 41, Cent. Dig. Railroads, § 762.]

2. SAME RECONSTRUCTION BY LANDOWNER.

Where a railroad right of way fence, after being repaired by the railroad company pursuant to notice, was insufficient to turn stock, as required by Burns' Ann. St. 1901, § 5323, the landowner was entitled to repair or rebuild the same and recover the cost and a reasonable attorney's fee from the railroad company.

[Ed. Note. For cases in point, see vol. 41. Cent. Dig. Railroads, §§ 328-332.]

Appeal from Circuit Court, Clinton County; Jos. Claybaugh, Judge.

Action by Thomas Irons against the Chica

go, Indianapolis & Louisville Railway company. From a judgment for plaintiff, defendant appeals. Affirmed.

E. C. Field, H. R. Kurrie, and Guenther & Clark, for appellant. Jos. Combs, for appellee.

ROBINSON, C. J. Suit by appellee for the cost of repairing or rebuilding a fence between appellee's property and appellant's right of way. Upon issues formed, a trial resulted in a finding in appellee's favor for $38.38 and $25 attorney's fees, and judgment for $63.38. The only question argued is that the finding is not sustained by sufficient evidence, both as to the amount allowed for building the fence and as to attorney's fees.

The statute (section 5323, Burns' Ann. St. 1901) requires that the railroad company shall erect and maintain fences along its right of way, that they may be constructed of barbed wire, and that they shall be sufficient and suitable to turn and prevent cattle, horses, mules, sheep, hogs, and other stock from getting on the track. The authority for requiring railroad companies to erect and maintain fences on the sides of their roads sufficient and suitable to prevent cattle, horses, mules, sheep, hogs, and other stock from getting upon them, is found in the general police power of the state to provide against accidents to life or property in any business or employment. Indianapolis, etc., R. Co. v. Townsend, 10 Ind. 38; Indianapolis, etc., R. Co., v. Kercheval, 16 Ind. 84; Indianapolis, etc., R. Co. v. McKinney, 24 Ind. 283; Peoria, etc., R. Co. v. Duggan, 109 Ill. 537, 50 Am. Rep. 619; Missouri Pac. R. Co. v. Humes, 115 U. S. 512, 6 Sup. Ct. 110, 29 L. Ed. 463; Minneapolis, etc., R. Co. v. Beckwith, 129 U. S. 26, 9 Sup. Ct. 207, 32 L. Ed. 585; Minneapolis, etc., R. Co. v. Emmons, 149 U. S. 364, 13 Sup. Ct. 870, 37 L. Ed. 769; Elliott, Railroads, §§ 669, 1219, 1220.

But

There is evidence in the record that, after the notice was given to repair the fence, appellant made some repairs; that, after the repairs were made, the fence was a barbed wire fence such as the statute contemplates. there is also evidence that, after the repairs were made, the fence was not sufficient to turn stock as specified in the statuté. · If the fence, after the repairs were made by appellant, was sufficient to turn stock, any further work done on the fence by the landowner must be at his own expense; that is, if appellant had made the fence sufficient to turn stock it had complied with the stat

It may have made a barbed wire fence; but the question is, did it make a fence sufficient to turn stock? This was a question of fact at the trial. This court cannot undertake to harmonize the conflicting statements of the witnesses upon this question. There is evidence that after the fence was repaired by appellant it would not turn stock as required by statute.